Procedural Justice – Article by Lawrence B. Solum

From Volume 78, Number 1 (November 2004)

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of dispute resolution—in other words, a system of procedure. A theory of procedural justice is a theory about the fairness of the institutions that do the job of particularization.